Counsel for the Economically Advantaged Spouse

A Prenuptial Agreement protects the economically advantaged spouse upon a termination of marriage by death or divorce.

Without a Prenuptial Agreement (sometimes called a Premarital Agreement or Antenuptial Agreement) in place, a judge of the Massachusetts Probate and Family Court will determine the division of property and award of alimony upon divorce. Judges have a great deal of discretion in this area, which can lead to unfair results. A prenuptial agreement takes these matters out of the judge’s hands, and predetermines the results in a divorce scenario.

In most prenup cases, there is an economically advantaged spouse and an economically disadvantaged spouse. The advantaged spouse typically has one or more financial interests that they want to insulate and protect. Counsel for the advantaged spouse must identify these interests, develop a plan for their protection, and build the framework of an agreement that incorporates these protective elements, while being fair to the disadvantaged spouse.

In addition to current assets, prenuptial agreements may also provide a framework for dealing with future earnings, asset appreciation, income disparities, gifts and inheritances, business interests, and non-monetary contributions of spouses. Further, prenuptial agreements may waive or modify certain marital property rights that exist upon the death of a spouse.

Despite their broad application, there are several common impetuses that lead clients to create a prenuptial agreement. The following persons are often good candidates for prenups: people with children from a prior marriage, business owners, people expecting a sizable inheritance, people with significant economic disparities over their future spouse, and people whose spouse lacks money management skills.